Thursday 8 February 2018

French Constitutional Court Rejects Challenge to Image Right in National Monuments

                                                                            How much do I owe?

France's Constitutional Court has just ruled that a provision in the Code du patrimoine (Heritage Code) involving the use of images of buildings protected as national domains passes constitutional muster.

The provision at issue was Section L.621-42 of the Code, which, as amended by the Act of 7 July 2016, provides as follows:

"The use, for commercial purposes, of the image of buildings constituting national domains, on any media, is subject to the prior authorization of the custodian [French term is "gestionnaire"] of the relevant portion of the national domain.  Such authorization may take the form of a unilateral deed or a contract, whether or not in conjunction with financial terms.

The fee shall take into acocunt the advantages of any kind obtained by the holder of the authorization.

The authorization contemplated by the first paragraph is not required where the image is used in the context of the exercise of a public service mission or for ends that are cultural, artistic, pedagogical, for teaching, research, informational and by way of illustration of current events."

The constitutionality of the provision was challenged by Wikimedia France  and La Quadrature du Net (by way of a so-called priority question of constitutionality) which argued, inter alia, that the provision violated the principle whereby patrimonial rights subsisting in an intellectual work must be time-limited (i.e., cannot be perpetual), the freedom to carry on business (of those whose business is based on marketing such images) as well as the right of property (of the owners of such photographs as tangible property as well as copyright holders therein) and the principle of equality before the law (inasmuch as the statutory provision allows a degree of latitude to the custodian in granting - or not - the authorization - for free or for a fee).

Theses grounds are brushed aside by the Court, which holds that the provision is constitutional.  In an interesting paragraph, it clarifies that it follows from a combined reading of the first and third paragraphs that the custodian's authorization is not required where the image is used for commercial purposes and also in furtherance of an end that is cultural, artistic, pedagogical, for teaching, research, informational, by way of illustration of current events or related to a public service mission.

Link to decision here

No comments: